The opinion of the court was delivered by: John Gleeson, United States District Judge
Kamela Payne brings this action against her former employer pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York common law. Payne's amended complaint alleges five causes of action: (1) wrongful termination, in retaliation for Payne's complaints about sexual harassment by her immediate supervisor, Michael Hendrickson,*fn1 in violation of Title VII; (2) retaliatory termination, in violation of the NYSHRL; (3) as against defendant Shaun Belle, aiding and abetting her retaliatory termination, in violation of the NYSHRL, specifically N.Y. Exec. Law § 296(6); (4) punitive damages; and (5) intentional infliction of emotional distress. Defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss causes of action (3) through (5) for failure to state a claim upon which relief can be granted. For the reasons discussed below, the motion is granted in part and denied in part.
Payne's amended complaint alleges that she worked at The Mount Hope Housing Company, Inc.as a property manager from December 14, 1998 to her termination on April 13, 2000. See Amended Complaint ("Compl.") ¶¶ 14, 40. Until December 1999, she "dutifully performed all of the responsibilities of her job" and received only positive evaluations. Id. ¶¶ 15-16.
In October 1999, Michael Hendrickson became Payne's immediate supervisor, and, beginning October 25, 1999, made comments to Payne on "numerous occasions" that were sexual in nature and indicated to Payne Hendrickson's sexual interest in her. Id. ¶¶ 18-19. On December 9, 1999, "Hendrickson put his hand on [Payne]'s waist in a sexually suggestive manner" and "was rebuffed" because Payne did not welcome the touching. Id. ¶¶ 20-21.
The first negative remarks about Payne's performance came four days after the December 9 incident -- Hendrickson told Payne he was going to write her up for being late, not having her inspection reports prepared on time, and not submitting all her outstanding reports. See id. ¶¶ 22-24. Payne claims the threats had no basis because she "had legitimate reasons" for not filing her reports on time and was not, in fact, late to work. See id. ¶ 25.
Payne wrote a letter to defendant Belle on December 15, 1999, telling him of Hendrickson's behavior and requesting an investigation of her claims of sexual harassment. Id. ¶ 26. The same day and going forward, Payne received from both Hendrickson and Belle "a number of written memoranda" that criticized her job performance. Id. ¶ 27. Payne claims the allegations "were false and were intended to establish a record of bad performance" to set the stage for later retaliatory measures. Id. ¶ 28.
Payne was out of work between December 28, 1999 and March 27, 2000, on disability leave for an injury she suffered while working. See id. ¶¶ 29-31. During that period, on March 8, 2000, Payne filed a sexual harassment and retaliation complaint against Hendrickson and the named defendants with the Equal Employment Opportunity Commission and the New York State Division of Human Rights. Id. ¶ 32. When Payne returned to work, Hendrickson began to withhold important information from Payne about the properties she managed: information about City housing violations and purchase orders. Id. ¶ 33. On March 31, 2000, Payne complained to Hendrickson in writing that she required the purchase orders and other relevant information, to no avail. Id. ¶¶ 34-35.
On April 11, 2000, Payne received a memorandum from Hendrickson criticizing her for not being at her scheduled location. Id. ¶ 36. Payne claims this memorandum, too, was false. Id. ¶ 37. The next day, after Hendrickson asked Payne to leave her work station and wait in the kitchen while he searched her work area, Belle entered the kitchen and told Payne, "[Y]ou have two choices, you can either resign or you can be terminated." Id. ¶¶ 38-39. Payne was terminated on April 13, 2000. Id. ¶ 40.
On April 22, 2000, Belle filed a defamation action against Payne, which Payne asserts was calculated "to further intimidate Plaintiff into discontinuing her discrimination Charge." Id. ¶ 41.
A. Standard of Review on a Motion To Dismiss
A motion to dismiss tests the legal, not the factual, sufficiency of the complaint.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)) (prior citations omitted)). For the purposes of the motion, I accept the factual allegations in Payne's complaint as true, and draw all inferences in her favor. See Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir. 2005), cert. granted, 126 S.Ct. 2965 (2006). I may not grant the motion unless it appears ...